Cook v Crawford

Re: ROBERT ARTHUR COOK; ULICK COLIN BIGNELL; HAROLD SHOOTER; KENNETH LEWIS
TYLER; ROYCE LAWRENCE CUMMINS and GREGORY LAWRENCE WATERS
And: G. CRAWFORD; G.L. SMITH; R. FAIRWEATHER; R. HEVEY; T. BOURKE; R.
MASTERTON; THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA (1982) 62
FLR 34
No. 6 of 1981
Industrial Law - Conciliation and Arbitration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Smithers(1), Keely(2) and Sheppard(3) JJ.

CATCHWORDS

Industrial Law - organisations - dismissal from office - expulsion from membership - power of federal executive to hear charges of gross misbehaviour against members of branch executive - detailed consideration of provisions of rules of organisation - whether an amendment of rules conferring on federal council power to amend rules a valid exercise of power - whether such an amendment imposed upon the membership conditions and/or restrictions which, having regard to the objects of the Act, were unreasonable - whether there was such imbalance in the representation of the membership on the organisation's federal council as to warrant the conclusion that the structure of the organisation was "undemocratic" - whether charges laid against officials in their capacity as such were able to be relied upon for the purpose of expelling them as members - whether relief should be refused on discretionary grounds - whether officials by their conduct had repudiated their contract of membership - whether any such repudiation had been accepted by the organisation - whether the officials should, by reason of their conduct, be taken to have "unilaterally resigned" their offices and membership - Conciliation and Arbitration Act 1904, ss.132, 140, 141, 144, 171B, 171C, 171F and 171G.

Conciliation and Arbitration - Registered organization - Rules - Performance and observance thereof - Dismissal from office and expulsion from membership of members by federal executive - Amendment of rules - Whether mandatory procedure observed - Power given to federal council to amend rules - Whether oppressive, unreasonable or unjust - Effect of rule amendments introduced under invalid rule - Whether invalid rules validated at expiration of four years - Whether validation extended to invalidity caused by statute - Whether representation of certain branches on federal council disproportionate - Whether charges against officers in that capacity could be relied upon for purpose of expelling them as members - Whether relief should be refused on discretionary grounds - Conciliation and Arbitration Act 1904 (Cth), ss. 132, 140, 141, 144, 171B, 171C, 171F, 171G.

HEADNOTE

By rule nisi in Matter N.S.W. No. 19 of 1979 the appellants' members and office holders of the Plumbers and Gasfitters Employees' Union of Australia (the organization), a registered organization sought orders: (a) under s. 141 of the Conciliation and Arbitration Act 1904 (the Act) that the respondents, being federal executive members, perform and observe the rules of the organization by treating as null and void certain resolutions of the executive purporting to expel from membership and dismiss from office five members of the Sydney branch being the second to sixth appellants; (b) that the respondents recognize the five members as holders of their respective offices on the grounds that the rules (rr. 13(6) and 35(10(d)) under which charges against them were laid and heard and penalties imposed were invalid.

The trial judge discharged the rule nisi. The first respondent Crawford in separate proceedings, V. No. 23 of 1979, had obtained orders under s. 141 of the Act against certain respondents including Cook.

On appeal.

Held: (1) Per Keely and Sheppard JJ., Smithers J. dissenting - The amendment to r. 28(5), which gave the federal council an unfettered authority to amend the rules and pursuant to which rr. 13(6) and 35(10)(d) were adopted, was invalid because (a) the meeting at which it was adopted was not specifically convened for the relevant purpose as required by the then r. 28(5): (b) the requirements of the existing r. 28(5) were mandatory. Roots v. Mutton (1978) 32 FLR 15, applied.

(2) Per curiam - Section 171B of the Act did not cure the invalidity of the amendment of r. 28(5) because s. 171B(6) made it clear that the section did not apply to acts which affected membership of an organization or the imposition of a penalty.

(3) Per curiam - However, pursuant to s. 171F of the Act the purported amendment of r. 28(5) was validated at the expiration of four years from the purported alteration of the rule.

Egan v. Harradine (1975) 25 FLR 336 at p 381, not followed.

Lynch v. McLachlan (1962) 3 FLR 59, distinguished.

(4) Per Keely and Sheppard JJ. - Rule 28 (5) as amended, infringed s. 140(1)(c) of the Act by imposing upon members conditions which, having regard to the objects of the Act and the purposes of the registration of organizations, were unreasonable. The rules contravened s. 140 in a specified respect by failing to afford the general body of membership an adequate opportunity to take part in decisions to amend or add to its rules.

Per Smithers J. dissenting - Rule 28(5) as amended did not offend s. 140(1). In the rules as amended there was sufficient control of federal council by members.

(5) Per Keely and Sheppard JJ. - (a) As regards the rights of members inter se, as the purported amendment made by r. 28(5) was invalid it did not confer upon federal council power of its own motion to amend the rules of the organization. (b) Rule 28(5) as amended being invalid the relevant rules adopted thereunder were also invalid.

Section 171F did not cure these invalidities as that section did not operate to validate an amendment rendered invalid by s. 140(1) of the Act.

R. v. Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union (1960) 103 CLR 368; R. v. Dunphy; Ex parte Maynes (1978) 139 CLR 482, discussed.

(6) Per Keely and Sheppard JJ. - Accordingly, the federal executive had no power to hear and determine the charges against the second to sixth appellants or

Per Smithers J. - to expel them.

Per Keely and Sheppard JJ. - to dismiss or expel them.

(7) Per curiam - The court had a discretion whether or not to grant relief under s. 141 of the Act.

R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141; R. v. Spicer; Ex parte Foster (1958) 100 CLR 163; Magner v. Fowler (1979) 46 FLR 78, referred to.

Per Smithers J. - No order should be made. The appellants remained members but not officers of the organization. There was no reason to think that the respondents would fail to act in accordance with that legal position.

Per Keely J. - Relief should be granted. It would only be in a rare case that the court refuses an order.

Per Sheppard J. - Because of the conduct of the relevant appellants the court should refuse them relief both with regard to their dismissal from office and their expulsion from office.

Discussion by Sheppard J. of the need for legislative amendments to give the court all the jurisdiction necessary to deal with all aspects of disputes involving members and officials of organizations either amongst themselves or to which the organizations are parties.

(8) Per Smithers J., Keely J. expressing agreement - The trial judge should have accepted the evidence of the second appellant as to the branch representation on federal council as he had not been cross-examined about it.

Browne v. Dunn (1893) 6 R 67, applied.

(9) Per Smithers J. - The imbalance in branch representation established by that evidence was within the spectrum of disproportion which is acceptable under s. 140.

McLeish v. Kane (1978) 36 FLR 80, referred to.

(10) Per Smithers J. - The appellants having been charged only under r. 13(10) the only power available to the federal executive was dismissal from office.

HEARING

Sydney, 1982, February 2-5, 8-12, 15-16; July 7. #DATE 7:7:1982

APPEAL

The appellants appealed from an order of a single judge of the Federal Court of Australia discharging a rule nisi granted under s. 141 of the Conciliation and Arbitration Act 1904.

M.J.R. Clarke Q.C. and F.L. Wright, for the appellants.

P.R.A. Gray, for the respondents.

Cur. adv. vult.

Solicitors for the appellants: White Barnes & McGuire.

Solicitors for the respondents: Ryan Carlisle Needham & Thomas.

T.J. GINNANE

ORDER

The appeals be stood over for further consideration to a date to be fixed by the Court of its own motion or upon application by either party. The appeals be stood over for further consideration to a date to be fixed by the court of its own motion or upon application by either party.

JUDGE1

In these proceedings commenced by rule nisi on 31 May 1979 the appellant Robert Arthur Cook sought orders pursuant to s.141 of the Conciliation & Arbitration Act 1904 (the Act) that the respondents perform and observe the rules of the Plumbers & Gasfitters Employees' Union of Australia (the organization), an organization of employees registered under the Act,

(a) by treating as null and void certain resolutions of the Federal Executive of the organization adopted on 2 May 1979 purporting to expel from membership of the organization five persons being members and officers of the Sydney Branch of the organization (the Branch) and to dismiss them from the offices they held in the Branch, and,

(b) by recognising such persons as the holders of the offices held by them respectively.

The five persons referred to were Ulich Colin Bignell, Harold Shooter, Kenneth Lewis Tyler, Royce Lawrence Cummins and Gregory Lawrence Waters. On 2 May 1979 the said Bignell was the elected Secretary of the Branch, an elected Branch delegate to Federal Council and an elected member of the Federal Executive of the organization, the said Shooter was the elected Assistant Secretary/organizer of the Branch, the said Tyler was an elected Branch delegate to Federal Council and an elected full time Branch organizer and the said Cummins and Waters were elected Branch organizers.

On 10 August 1979 Messrs Bignell and Shooter were added as applicants in the proceedings No. 19 of 1979 and on 3 September 1979 Messrs Tyler and Waters were also added as applicants. The proceedings were heard and determined by his Honour Mr. Justice Evatt who gave judgment on 4 March 1981 that the rule nisi be discharged. From this judgment the five applicants have appealed to this Court. They are hereafter referred to as the appellants.

The resolutions of the Federal Executive were passed in the course of the imposition of penalties purportedly under r.35(10) of the organization on the determination of charges brought before the Federal Executive of the organization by Ronald Ivor Masterson Secretary of the Newcastle Branch of the organization, pursuant to r.13(6) of those rules.

The relevant charge against the appellant Bignell was that:-
"Being an officer of the Sydney Branch he is guilty of gross misbehaviour in that he ordered and directed H. Shooter, R. Cummins, K. Tyler and G. Waters being officers of the Branch under his direction and control to actively persuade, encourage and aid members of the Newcastle Branch of our Union to resign from membership of our Union and he has approved and endorsed their actions in doing so.
The Grounds upon which I lay these charges against U.C. Bignell are that between 23rd February, 1979 and 29th March, 1979 he has so ordered and directed the said officers and has approved and endorsed their action in carrying out those orders and directions."
The charge against each of the other appellants charged was:-
". . . that being an officer of the Sydney Branch he is guilty of gross misbehaviour in that he has actively persuaded, encouraged and aided members of the Newcastle Branch of our Union to resign from membership of our Union.
The grounds upon which I lay these charges against H. Shooter are that between the 23rd February, 1979 and 29th March, 1979 he has actively persuaded, encouraged and aided within the area of the Newcastle Branch as defined in Rule 47 the following members of the Newcastle Branch: (14 names were set out) employed by the Royal Newcastle Hospital (Health Commission) to resign from membership of our Union."
Each of the five appellants was notified thereof and informed by the General Secretary as follows,
10th April, 1979
Mr. H. Shooter,
"Dear Comrade,
I have received charges against five full time paid officials of Sydney Branch, including yourself. A copy of the charges laid against you is attached.
I have now been directed by the Federal Executive to summon you, H. Shooter, to a meeting of the Federal Executive commencing 11.00 a.m., on Tuesday, 1st May, 1979, in the Oriental Room, Carlton Rex Hotel, No.56 Castlereagh Street, Sydney, New South Wales, to show cause why you should not be dismissed from office or otherwise dealt with pursuant to Rule 35(d) and why you should not be expelled from membership of the Union pursuant thereto. You will be given the fullest opportunity to present your case and may bring any member of the Union as a witness.
(sgd) G. CRAWFORD"
Each of them was also informed that the charges were laid pursuant to r.13(6) of the organization. The charges were heard on 1 and 2 May 1979. On 2 May 1979 the Executive determined the same by resolving to the effect that the Federal Executive found each of the appellants charged to be guilty of the charge laid against him by Masterson and determined that,
(a) he be dismissed forthwith from the office or offices held by him in the Branch, and
(b) that he be expelled forthwith from membership of the organization.
Rule 13 is in the following terms:-
"13. - OFFENCES AND CHARGES
1. Always provided that no member may be expelled and/or fined without having been given a full opportunity to be heard and that no member elected to an office shall be dismissed from any office within the Union unless he has been found guilty in accordance with the Rules of misappropriation of the funds of the Union a substantial breach of the Rules of the Union or gross misbehaviour or gross neglect of duty or has ceased according to the Rules to be eligible to hold office, a Branch or the Committee of Management of such Branch shall be the power to expel and/or fine any member of such Branch any sum up to, but not exceeding, two hundred dollars ($200) for each offence, who -
(a) fails to comply with or violates any rule of the Union or any Branch;
(b) works knowingly in contravention of any Award, Determination Order or Agreement between the Union or a Branch and an employer or employers;
(c) refuses or fails to obey any motion duly resolved in the affirmative at any annual or special meeting of such Branch or of its Committee of Management or of the Federal Council or Federal Executive;
(d) allows his arrears of contributions to exceed the sum of four dollars ($4.00);
(e) fails to attend without reasonable excuse or apology, a meeting of the Branch or the Committee of Management, when summoned to do so by the Secretary;
(f) commits any fraudulent or unlawful act in relation to the funds or property of the Union, or in relation to any election held under the Rules;
(g) is guilty of wrongfully applying for work with the intention of depriving another member of his situation.
2. No penalty under this section shall be imposed unless the following procedures shall have been carried out:-
(a) The charge shall be made in writing and be accompanied by a fee of $10.00 by a member to the Branch Secretary who shall thereupon arrange for the charge to be dealt with by the next most convenient meeting of the Committee of Management.
(b) . . .
(c) . . .
(d) . . .
(e) . . .
(f) . . .
(g) . . .
3. After a penalty of expulsion and/or fine is imposed by the Committee of Management an appeal against such penalty may be made in writing to the Secretary within twenty-eight (28) days of the decision.
The appeal shall be dealt with at a special summoned meeting of the Branch and the member laying the charge and the member appealing shall each be given a full opportunity of being heard.
4. If the member charged or the member laying the charge is dissatisfied with the decision of the Branch an appeal may be made by notice in writing forwarded to the General Secretary within (twenty- eight days of the decision appealed against.
. . .
5. . . .
6. Any member shall have the right to lay a charge against any member or officer direct to the General Secretary and/or President. Such charge to be dealt with by the Federal Executive under the provisions of Rule 35.
Rule 35(10) is in the following terms:-
"10. The Federal Executive shall have the power
(a) to hear and determine an appeal by any member or officer lodged pursuant to Rule 13(4) or Rule 51(3);
(b) to hear and determine the charges made against any member direct to the General Secretary pursuant to Rule 13;
(c) to appoint any officer or employee of the Union or other person to investigate any complaint about the conduct of any member of the Union, record the evidence and statements and submit the same with his report thereon to the Federal Executive. The Federal Executive shall read and hear such record and report and may thereon determine whether any charge should be laid against any member pursuant to Rule 13 hereof provided that the investigating officer shall not vote in any such determination.
(d) for the purposes of Sub-Rules (a) and (b) hereof the Federal Executive shall have power to
(i) pending the investigation of the charges or complaints to suspend any officer from performing all or any of his duties for a period not exceeding three months;
(ii) to impose a fine not exceeding $200;
(iii) to dismiss from office any officer found guilty of misappropriation of the funds of the Union or gross misbehaviour or gross neglect of duty or who has ceased according to the Rules to be eligible to hold the Office;
(iv) to expel any member.
(e) an appeal shall lie to the Federal Council at the instance of the member or officer charged from any decision of the Federal Executive under this Rule. Notice of Appeal shall be given to the General Secretary in writing within 14 days of the decision being communicated to him and shall set forth in full all the matters that the Appellant desires to be considered. The Appeal may be dealt with by Federal Council in meeting or by postal vote."
It is in r.51, however, that provision is made in the rules, or primarily made for the dismissal from office of an officer on the ground of gross misbehaviour. Rule 51(3) (a), (b) and (c) is in the following terms:-
(a) The Branch Committee of Management may remove from office any officer or member of the Committee at a meeting of the Branch Committee of Management to which the person concerned has been summoned in writing signed by the Branch Secretary or Branch President to show cause why he should not be so removed. Provided that no such person shall be removed from office unless he has been found guilty of misappropriation of the funds of the Union, or gross misbehaviour or gross neglect of duty, or has ceased, according to the Rules, to be eligible to hold office.
(b) A person summoned to show cause pursuant to paragraph (a) of Sub-Rule 3 of this Rule shall be given at least fourteen (14) days notice of the time and place of the meeting of the Branch Committee of Management to which he is summoned. The notice summoning him shall also specify the ground or grounds upon which it is proposed to consider his removal. The Branch Committee of Management may proceed with a hearing to determine a matter under this Sub-Rule notwithstanding the absence of the person summoned if due notice of the hearing has been given in accordance with this Sub-Rule.
(c) An appeal shall lie from any decision pursuant to this Rule from the Branch Committee of Management to the Federal Executive. Notice of Appeal shall be given in writing to the General Secretary within 14 days of the decision being communicated to him and shall set forth in full all the matters that he desires to be considered. The appeal may be dealt with in meeting or by a postal vote."

As to the resolutions of Federal Executive the appellants have contended in this appeal that:-
1. Rules 13(6) and 35(10) which were relied upon as providing authority for the laying, hearing and determination of the charges were not actually rules of the organization at all. The contention was that although Federal Council had purported to make such rules on 10 August 1978 it was not authorised to do so because,
(a) the conditions imposed by r.28 upon the making or amending of rules by Federal Council had not been complied with;
(b) rule 28(5), as amended, was invalid, it being in contravention of s.140(1);
(c) at all relevant times Branch representation in Federal Council was in such imbalance that Federal Council was not validly constituted and could not validly enact rules or amendments of rules;
(d) the invalidity attaching to Federal Council extended to the Federal Executive, and,
2. The sanctions imposed were not, on their proper construction authorised by rr.13(6) and 35(10) if those rules were in force at the relevant time.
3. The rules relied upon as supporting the laying of charges direct to the General Secretary, rr.13(6) and 35(10), did not on their proper construction provide for laying of charges of gross misbehaviour, or, for the laying, hearing and determination by Federal Executive of any charge against an officer.
The respondents contended that:-
(i) that whether or not the amendment of r.28(5) was effectuated in conformity with the provisions of r.28(2) rr.13(6) and 35(10) are now to be considered as having been validly made because the period of four years from the amendment of r.28(5) in September 1977 whereby unfettered rulemaking power was conferred on the Federal Council has now elapsed. (see s.171F.)
(ii) the conditions upon the Federal Council's power to make or amend rules, said to be prescribed in r.28 were not applicable because r.28(5) had been amended by Federal Council in September 1977 in a manner which conferred on Federal Council a complete and unfettered power to make or amend rules;
(iii) if those conditions were applicable to the making of rules 13(6) and 35(10) on 10 August 1978 they were complied with;
(iv) rr.13(6) and 35(10) if invalidly made, were validated by the operation of s.171B of the Act;
(v) there was no evidence of imbalance in Branch Representation in Federal Council;
(vi) in the context of the rules as a whole any imbalance of which there was evidence was not of such a degree as to invalidate r.21 which provides for Branch representation on Federal Council:
(vii) if Federal Council was invalidly constituted there was nevertheless no invalidity in the constitution of the Federal Executive;
(viii) in any event, in the circumstances of this case the Court should refrain, in the exercise of its discretion, from making the orders sought.

The learned Judge found that rr.13(6) and 35(10) had been validly adopted by Federal Council on 10 August 1978, that the charges were regularly made and dealt with thereunder and that r.35(10) justified both dismissal and expulsion.

His Honour also found that r.21 did not offend s.140(1)(a) or (c) of the Act by reason of the imbalance in Branch representation on Federal Council.

At the trial it was contended that natural justice had not been extended by Federal Council to the appellants charged. His Honour found that there had been no failure on the part of the Federal Executive in this respect. No challenge to that finding was made in this appeal. At the date of judgment s.171F of the Act was not relevant because four years had not elapsed since Federal Council had purported to amend r.28(5). But at this date that period has elapsed.
The Passage of Four Years - Section 171F - (Respondents' Contention No. (i))

By virtue of s.171F, but subject to the provisions thereof, and of s.171G, upon the expiration of four years from the making or purported making or the alteration or purported alteration of a rule of an organization the same "shall, for all purposes, be deemed to have been done in compliance with the rules of the organization. . ."(see s.171F(1)). The submission to the South Australian Branch of the proposal to amend r.28 and the approval of that proposal by the Branch occurred on 15 June 1977. The Federal Council purported to enact the amendment of r.28(5) in September 1977.

Four years have now elapsed from the performance of both those events. However, four years had not elapsed when these proceedings were commenced nor when the order of the trial judge discharging the rule nisi was made, nor when this appeal was instituted. It was said by Mr. Clark that on its proper construction s.171F is not relevant to the hearing and determination of this appeal. He referred to Mason J. in R. v. Dunphy ex parte Maynes (1978) 139 C.L.R. 482 at p.495,
"In general the order of a court speaks as to the rights of the parties as at the commencement of the proceedings in which the order is made."
But as illustrated in that case this rule is not of universal application. The question whether it applies to these proceedings must therefore depend upon the terms of the section as properly construed. The words used are emphatic. The rule which the body has purported to make is deemed for all purposes to have been made in compliance with the relevant rules. It was argued that it is inherent in the section that the validity conferred by the section does not operate in relation to pending judicial proceedings. But the section is not silent on the subject of proceedings on foot prior to the expiration of the relevant four years. Sub-section two of s.171F expressly excludes from the operation of the section any order, judgment or similar judicial act of the Court made before the expiration of the four years referred to in s.171F(1). The omission from this exclusory provision of orders and judgment made after the four years in respect of pending judicial proceedings is of compelling significance.

It was pointed out by Mr. Clarke that s.171F(2) would operate to exclude from the operation of s.171F an interlocutory order directing, until ultimate judgment, the adoption of a particular course of conduct by a party to proceedings. This would seem to be so. But that circumstance does not indicate that the ultimate judgment would proceed as though s.171F was not applicable to the issues with which it dealt. When s.171F says that it operates subject to its own provisions it must be understood as saying that the only only exceptions concerning litigation instituted before the relevant four years are those specified in sub-section two. That sub-section certainly does not include judgments given after the expiration of the four years.

The situation is not as drastic as it might at first appear because s.171F itself provides it operates subject to s.171G. That section provides that where the Court is satisfied that the application of s.171F to the purported making or alteration of a rule would do substantial injustice having regard to the interests of the organization, members or creditors of the organization or persons having dealings with the organization, the Court shall, upon an application for such an order, by order declare accordingly and, where such a declaration is made, s.171F shall be deemed not to have applied to such purported rule making or alteration.

The express reference in s.171F to s.171G as a qualification of the validation effectuated by s.171F of various acts of an organization is an indication of considerable force that the legislature was well aware of the possibility of injustice occurring by the application of s.171F where the relevant four years should expire during the progress of legal proceedings. It made a provision whereby in a proper case relief could be obtained. In such a case the continuing operation of an interlocutory order would conveniently contribute to the avoidance of possible injustice.

It appears therefore that as of this date the amendment in September 1977 of r.28(5) must be treated as having been validly achieved. Accordingly on 10 August 1978 the Federal Council had complete and unfettered power to adopt rr.13(6) and 35(10) in their terms.

A somewhat non definite expression of a preference for a contrary view to the adoption thereof appears in the judgment of J.B. Sweeney and Evatt JJ in Egan v. Harradine (1975) 25 F.L.R. 336 at p.381 in the following terms:-
"It was argued that the period of four years referred to in the section was to be ascertained at the date of the decision. The contrary view was that it was to be determined as at the date of institution of proceedings. It is true that s.141 in terms makes the periods there referred calculable as from the institution of proceedings and s.171F has no such express language. In considering a statute amended so frequently and in such varying circumstances as this we are able to place little weight on that fact.
If the first view were adopted then in any proceedings the loquacity and stamina of counsel or the dilatoriness of the bench (any or all of which we concede may exist) could bring about cases where there was a good cause of action at the commencement of proceedings but which disappeared during the hearing or preparation of the decision.
We prefer and adopt the second view (cf. Lynch v. McLachlan. If we were of the contrary view we would be disposed to exercise the powers under s.171G."
It is to be noted that in Lynch v. McLachlan (1962) 3 F.L.R. 59 it was decided that a member who was validly expelled from an organization after he had sought relief under s.141 in respect of an earlier invalid disqualification from office was entitled to an order under s.141 in respect of such disqualification. The Court said:-
"As to the respondents' second answer, the claimant was a member of the organization at the time of his disqualification from office and at the time he obtained the rule nisi challenging the disqualification and in our opinion this is sufficient to entitle him to seek relief under s.141 of the Act in respect of a misapplication of the rules of the organization which affects him personally and detrimentally. The rule of the common law is that there must be a complete cause of action at the time proceedings are instituted (see Nathan v. Green). So long as jurisdiction exists at the time proceedings commence, the proceedings may continue notwithstanding that the facts on which jurisdiction is based subsequently change (Russell v. Russell). The claimant accordingly is entitled to an order declaring that the decision of the annual conference of the Amalgamated Postal Workers' Union of Australia made on 21st November, 1961, purporting to disqualify the claimant for twelve months from holding office in the organization was and is invalid."
This decision is not really of assistance in the construction of s.171F. The question there was whether, given that an applicant has at the date of his rule nisi a good cause of action, the Act has not provided that, if a certain event occurs before judgment, the cause of action may be defeated. Ordinarily one would set one's face against a construction which would produce such a result because it would be unjust. But the situation is different where the legislature has foreseen and provided for relief if such injustice should occur. It seems clear that in expressing their preference in Egan v. Harradine (supra) the Judges were speaking in the absence of argument in depth, and in circumstances in which they were conscious that the preference expressed was not essential to the problem before them and might not on further investigation appear well founded. In these circumstances it is my opinion that this is a case in which with respect to the contrary opinion so expressed this Court is not constrained from acting on its own opinion on this matter.

Where it is said that by the operation of s.171F substantial injustice was suffered and relief is sought it would be necessary to explore whether relief should be extended. Relief has not been sought.

Accordingly the amendment of r.28(5) must at this stage be deemed to have been achieved in accordance with the rules of the organization. However it is a more satisfying resolution of the issues in this case if it is achieved on the basis that the amendment of r.28 is seen to have been accomplished actually in accordance with the rules than to proceed merely on the effect of the passage of time in litigating the issues. I pass therefore to consider whether as a matter of procedure the amendment was effectuated according to the rules of the organization. I think it was.
Amendment of Rule 28(5) - (Respondents' Contention No. (ii))
The appellants' case in support of part (a) of the first contention involves an examination as to whether on 10 August 1978 there were any conditions to which the rule making power of the Federal Council was subject. Prior to September 1977 r.28 of the rules of the organization was in the following terms:-
"28. Amendment to Rules
1. The Rules of the Union shall not be amended except on a resolution carried by a majority of the Council.
2. Any member desiring to submit to the Council any proposal to amend the Rules must first submit such proposal to the meeting of his Branch specially convened for the purpose.
3. If such proposal be approved by a majority of the members present at such meeting it shall be forwarded to the Head Office for submission to the Council.
4. The General Secretary shall prepare an agenda of any such proposals and forward copies of same to all Branches, not less than six (6) weeks prior to the Council meetings to which such proposals are submitted.
5. The Council may at any time make or amend any Rules so that the Rules of the Union may comply with the requirements of the Commonwealth Conciliation and Arbitration Act, or any similar State Act."

In September 1977 Federal Council purported to amend r.28 by renumbering it r.27 and by substituting for sub-rule 5 thereof the following paragraph:-
"5. The Council may at any time make or amend any Rules."
On its proper construction before the amendment, r.28 was effective to impose upon the rule making power of the Federal Executive the condition that any new or amending rule should have made its appearance on the agenda of Federal Council only after observance of the procedure prescribed in sub-rules 2,3,4 as fairly construed. That view of r.28 was subsequently taken by the Full Court of this Court in Roots v. Mutton (1978) 32 F.L.R. 15.

It appears that the amendment to r.28(5) was initiated at the Annual Meeting of the South Australian Branch which was held on 15 June 1977. Notice of the holding of that meeting was given in the Branch Bulletin which was posted to all members more than two days before that date. The front page of the Bulletin contained the following statements:-
"BULLETIN
JUNE 1977
ANNUAL GENERAL MEETING -
WEDNESDAY, JUNE 15TH, 1977.
UNION OFFICE, TRADES HALL, ADELAIDE. 7.30 P.M.
BUSINESS:
1) MINUTES.
2) RECEPTION OF BALANCE SHEET AND FINANCIAL STATEMENT.
3) RETURNING OFFICER'S REPORT.
4) PROPOSED RULE CHANGES.
5) REPORTS.
6) ANY OTHER BUSINESS
Office Address:
Suite 6, First Floor,
Trades Hall,
11-16 South Terrace,
Adelaide. S.A. 5000.
Postage to: Box 144,
GOODWOOD. 5034
General Meetings are held on the third Wednesday in the month at 7.30 p.m. in the Union Office, Trades Hall, Adelaide.
Chairman - Trevor Meredith
Organiser - Tony Bush
Secretary - Bob Fairweather"
It can be seen that the Bulletin gave notice that the agenda of the meeting included the matter of rule amendments. Furthermore the opening statement on page 2 of the Bulletin was as follows:'
"CHANGES TO RULES: The Branch Committee recommends the following Rule changes to be included on the Agenda of the Federal Council Meeting to be held in Newcastle on 19th September, 1979 (sic)."
Thereafter the text of the proposed amendment to r.28(5) was set out. The proposal to amend r.28(5) as above was put to the meeting and carried and notice of intention to include the proposal on the agenda of the next Federal Council meeting was transmitted to Branches as required by r.28(4). The proposal was included on the agenda of the Federal Council meeting of September 1977 and at that meeting the proposed amendment was adopted. The appellants contended that the meeting of the South Australian Branch on 15 June 1977 was not "the meeting of his branch specially convened for the purpose" within the meaning of r.28(2). In my opinion this contention cannot be accepted.

The words in question should be construed in the context of the whole of the rules, and, in particular the rules concerning the calling or convening of meetings. The rules provide for meetings differently designated. They provide for "Special or General Summoned Meetings" (r.60(4)), and "Special Meetings" (rr.47(4)(d), 55 (1) and 60(5)). the calling of meetings is governed by r.60(4) which is in the following terms:-
"4. Notice of all Special or General Summoned Meetings shall be given by an advertisement in a daily paper, or by summon notice forwarded,at least two days prior totime of meeting, to each member, to the address last recorded by the Secretary ar oat the office of the Branch."
It is to be noted that this rule does not provide that the notice of either class of meeting contain information as to the business to be considered thereat. It is arguable therefore that a meeting becomes a meeting specially convened for a particular purpose if the notice convening it contains notification, simply, that specified business is to be brought before the meeting. I think, however, that this suggestion lacks conviction. Notwithstanding r.60(4) I do not think that a special meeting would be properly convened by notice which did not indicate the nature of the business to be dealt with.

There is of course reason for a provision that the business of altering rules should be considered at meetings where the spotlight is on theat business. This might not be achieved at a meeting where various subjects have to be dealt with. On the ohter hand while there is likely to be a reasonable attendance of members at an annual or ordinary monthly meeting the same cannot be said with respect to a special meeting at which a proposed rule amendement is the only business. However r.28(2) is not concerned with a meeting where rules are to be amended. It is concerned only with the inclusion of a proposed amendment on Federal Council's agenda. Federal Council will only be required to include in its agenda a new rule which has had consideration at Branch level, and Federal Council will be required to include in its agenda a rule which has been approved after such consideration.

It is important to note that r.28 provides the only path to rule amendment on the initiative of a member, and that fundamentally it is an enabling rule. That members should be able to initiate consideration of proposals to amend rules by the branches and Federal Council is legitimate and beneficial to the Union. Rule 28(2) is a fetter upon this facet of union activity. To my mind an interpretation of r.28(2) which does not fetter it unduly or even unnecessarily is to be preferred, if logical and open on the working of the rule. But in construing r.28(2) it is certainly the case that in the absence of some context, the notion of "a" meeting specially convened for a purpose, would be of a meeting which, but for the purpose of accomplishing that purpose or that purpose amongst others, would not have been convened.

Accordingly if the meeting of 15 JUne 1977 is to be regarded as "the meeting of his Branch specially convened for the purpose" of receiving the proposal to amend r.28, it must be because, in those words, construed in the context of the rules, the notion that it is the convening of the meeting at all, which is to be special, is not present. However, the relevant words are "the meeting of his Branch" and not "a meeting of his Branch". This may seem at first as of little importance. Nevertheless if a special meeting were contemplated the expression "a meeting or "a special meeting" would have been more appropriate. That the meeting in question is not described as a special meeting is of significance because, in so many instances in these rules, meetings are specified as special or of some other specified kind. It is a legitimate view therefore that the meeting is not conceived of as a special meeting. It follows from this that what is special about the meeting may not be that it is a meeting specially convened, but that being a meeting ordinarily convened there is something in the manner of the convening of it which characterises it as special to the specified purpose.

The suggestion in the relevant words is that the meeting in question is one which it is contemplated will in any event be held. Indeed they express the notion that the meeting referred to is one the holding of which is already provided for. And it is clear that according to the rules it is comtemplated that regular Branch meetings one of which is the annual meeting will be convened. It is permissible therefore to understand the reference to "the meeting of his Branch" as a reference to one of the regular Branch meetings which will be convened from time to time for general Branch purposes. If, for a moment, one considers r.28(2) as though the words "specially convened for the purpose" were not present, it would seem clear that a member might present a proposal to amend a rule at any of the ordinary meetins of the Branch convened in the ordinary way under the rules. The reference would not be "a meeting of his Branch" or to "a special meeting" but to "the meeting" which, in the contemplation of the rules, will be held in any event in the ordinary course of affairs. To my mind there is wrapped up in this a recognition that under the rules meetings of the branch are provided for and that it is to one of those that the member may present his proposal. If, with this in mind, the words "specially convened for the purpose" are put back into r.28(2) the notion that the meeting in question is to be one which would not have been held but for the purpose of receiving the rule amendment proposal has disappeared. One has passed from the notion of a meeting which is to be specially convened, in the sense that it is the convening of it at all which is special, to the notion that the meeting being one which is going to be convened in the ordinary way, in any event, there is to be something relating to a purpose of the meeting that is special in the manner of convening of it. In such a case there is plenty of work for the word "specially" to do according to its ordinary meaning as modifying the manner of the convening of the meeting ot emphasise that the purpose is to do the particular business specified. The convening of the meeting appointed fore considering a rule amendment proposal can be said to be special when the notification of calling the meeting designates it as a meeting at which the proposed rule amendments are to be considered. When the member has put his proposal at that meeting his proposal has been submitted to the meeting of his Branch specially convened for the purpose,

As indicated above, it is said that such a construction fails to recognise the significance of rule changes in Union government. Changes in rules go to the heart of the fundamental rights and duties of members and it is expected that due ceremony will be provided in relation to the initiation of rule changes. One contention is that the rule should be construed as requiring that changes be initiated only at a meeting at which that subject and no other is on the agenda. The spotlight of the meeting should be on that subject alone. It is to be observed, however, that construing the rule as though it does require a meeting specially conbened, in the sense that it is to be a meeting which would not have been held but for the purpose of receiving a rule amendment proposal, it does not even then require that the rule amendment proposal be the only business to be conducted thereat or even that it be the first business to be dealt with. Mr. Clarke conceded, and rightly so, that a meeting specially convened for the purpose of considering a rule amendment proposal might be used to consider other business. A meeting specially convened for a particular purpose in the narrow sense, is specially convened for each of a number of particular purposes for which it may be convened. How little of anything would be gained by insisting upon a merely literal construction of the critical words, non response to other considerations is revealed by nothing that so construed the rule woudl be satisfied by the giving of a notice that at the conclusion of the ordinary meeting on the date chosen a special meeting would be held to consider the proposed amendment.

A rule amendment proposal adopted by a Branch does no more than ensure that the proposal appear on the Federal council agenda. There is some lack of consistency in the notion that approval of a rule amendment porposal in one Branch is to be seen as of such significance that it is only at a special Branch meeting, where it is the only or perhaps the most important item, that it can be given, and the absence of any provision that the proposal is ever to be considered at any meeting special or otherwise, of any of the other Branches. Certainly the Branch officers are to be apprised that the proposed amendment is on the Federal Council agenda, but they are not required to consult the Branch membership in any way on that matter.

In the construction of a rule which is essentially of an enabling character, and subject to r.28(5), provides the only method of bringing rule amendment proposals to Federal Council or before the Union at all, practical considerations would suggest that although Federal Council should be protected form frivolous proposals, undue difficulties are not intended to be placed in the path of members with proposals to submit. It is one thing for a Branch to provide special notice of a proposal to be considered at a Branch meeting. It is another thing to induce a Branch to call a special meeting or for the Branch to hold it. All things considered there is little to be gained from a special meeting. There is no guarantee that business other than the rule amendment proposal will not be done or done in advance thereof at such a meeting or that there will be a reasonable attendance thereat. At least at a regular branch meeting the prospect of a reasonable attendance is real.

In the light of all these considerations I am in agreement whith the learned trial Judge that in the context of the rules a meeting convened by the Branch in the ordinary way, according to the rules, is specially convened for the purpose of receiving a rule amendment proposal under r.28(2), if in the act of convening of the meeting it is made clear to members that the meetings is convened, inter alia, to consider such a proposal.

It is said by the appellants that even if the amendment of September 1977 be valid it did not operate to remove the conditions previously applicable to the Federal Council's rule making powers. I do not take this view. Accordingly, in my opinion r.28(5) was validly amended by Federal Council in september 1977.
Validity of Rule 28(5) As Amended - (Respondents' Contention No. (iii))

If the amendment to r.28(5) is to be treated as having been validly accomplished as indicated above, or, as discussed earlier, by virtue of s.171F, then, if its content as so amended did not, in itself, contravene s.140 of the Act, it was effective to support the later adoption of rr.13(6) and 35(10). However, it is pointed out that the new r.28(5) purports to confer on Federal Council complete and unfettered authority to make and amend rules as it thinks fit and it is said that such a rule necessarily conflicts with s.140(1). To confer so much power in such a fundamental area of the government of an organization must, it is suggested, impose upon members conditions, obligations or restrictions which having regard to the objects of the Act and the purposes of registration of organizations under the Act, are oppressive, unreasonable or unjust, But to my mind it is not clear that this rule amendment does of itself operate to impose upon applicants formembership or members of the organization conditions, obligations or restrictions within the meaning of those words in s.140(1).

There is no express provision in the Act or regulations pursuant thereto that rules not offending any of the provisions of the Act or regulations can only be made by a rule making authority if certain conditions are observed. If one were to attempt to find such provision by implication the only source of such an implication would be s.140 itself. In Morris v. Federated Liquor and Allied Industries Employees' Union of Australia (1978) 21 A.L.R. 425 it was argued that a rule making power which was expressed in terms making no provision for the autonomy of branches and wide enough to authorise the making of a rule which invaded the autonomy of a Branch in contravention of s.140(1)(d), was contrary to the provisions of that section. The Full Court of the Federal Court held that the rule, although conferring a rule making power in such wide terms, did not contravene the section. If the power were used to make a rule which contravened s.140(1)(d), that rule would, of course, be invalid.

The subject matter of such a rule is apt for regulation by provision for control of committees pursuant to the requirement of regulation 115(1)(d)(v). Nevertheless because there is in these rules so much control of the Federal Council I do not think that the rule in question does offend s.140(1) even if it does impose conditions or restrictions within the meaning of the words in that section.

According to its terms, the new rule renders all members and branches subject to the risk of changes in the rules which constitute the "conditions", upon which members are associated together, at the will of the small number of the Federal Councillors. Subject to relevant laws and controls to be found in the rules it is that small number of men who may alter those conditions. It is easy to contemplate the lengths to which an irresponsible or oppressive Council might go in changing the conditions. The first possibility that springs to mind is that it might attempt to abolish r.28(2), (3) and (4), the plebiscite rule (r.26), or the review of decision rule (r.23). But each of these rules is so important in relation to one of the chief objectives of the Act, namely the encouragement of demnocratic control of the organization and the full participation of members in its affairs (s.2(f)) that the removal of any one of them would in the circumstances of this organization offend the provisions of s.140(1)(c). Except as an exercise designed to deprive members ofappropriate and reasonable democratic participatory rights there wouldbe no basis for such removal. There is therefore no ground for anticipating that the controls on the Federal Council provided in those provisions could be removed by the Federal Council in the exercise of its powers under the new r.28(5). And the controls in the rules themselves are real. Under r.28(2), (3) and (4) any member may activate his branch to take action to ensure that a rule amendment thought desirable is not only placed on the agenda at the biennial Federal Council meeting but is brought to the notice of all branches. It is the effect or r.23 in the Branch structure of this organization that, on request, of two branches in different states voting in special meeting, the General Secretary shall call a special meeting of Federal Council to review any previous decision. And pursuant to r.26 upon a majority of branch members present at special meetings in each of two branches, which having regard to quorum provisions could constitute sixteen members in all, resolving that any decision of Federal Council be disagreed with and submitted to a referendum of the members of the organization, that decision shall be so submitted.

So far as the Act speaks on the matter of rule amending rules it is to be noticed that regulation 115, which is given statutory authority by s.132, states simply that as a condition of registration the affairs of an association shall be regulated by rules providing, in relation to the association, for, inter alia, "the alteration of its rules". There is no suggestion that any particular limitations or guidelines are to apply to the rule making process of the body on which the rule alteration power is conferred or any constraints within which such a body may act. The maintenance of this situation may well be explained by the presence of regulation 115(i)(d)(v) and s.140(1) of the Act.

There are of course authorities which deal with the adequacy of controls required by regulation 115(1)(d)(v). But none, I think, would require that controls such as those referred to above not be regarded as satisfactory. In this case the rule in question, the new rule r.28(v), was made after observance of a procedure as to which no suggestion is made that it was not sufficiently democratic. In a slightly different area, namely, the nature of the provisions made for the election of members of committees and officers there are judicial statements emphasising that the matter is one, "primarily . . . for the members of the association to determine having regard to the nature of that body and the circumstances which exist in relation to its membership", per O'Mara J. in Thornton v. Mackay (1946) 56 C.A.R. 561 at p. 590. His Honour added, "The same is true of the provisions for the control of such Committees by members of the Association." But of course such freedom must be exercised in accordance with the law. Reference to this freedom is made by Bowen C.J. in Re Airline Hostesses' Association 48 F.L.R. 214 at p.221, in the following terms:-
"What must be kept constantly in mind is that organizations registered under the Act may represent many thousands of members all over Australia. These members must be represented democratically but also efficiently and because of the division of Australia into States and Territories, a federal system of representation would be normal. The courts have frequently considered various types of federal systems and from the cases it is clear that organizations are able to design specific structures with different checks and balances to cater for their own individual needs. The only parameters are those embodied in reg.115 requiring election for a committee of management, various officers and any other policy-making or management body. As was said in Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia per Smithers and Evatt JJ.: 'A constitution suitable for one union may be unsuitable for another . . . The rules must be designed to ensure stability in management and at the same time to avoid installing officers who cannot be removed. In the designing of rules appropriate for an organization of employees much must be left to the judgment of those who make the rules'. (And see generally Lovell's case; and Wiseman v. Professional Radio and Electronics Institute of Australasia.)"
Similarly, to my mind, it was primarily for the membership to decide by what body and subject to what restraints, if any, the rules of the organization might be amended. And this membership of this organization did operating through r.28(2),(3) and (4).

The Federal Council is democratically elected in accordance with s.133 of the Act and comprises members representing each Branch. Its members regularly face the electorate. All rules which it makes must be certified by the Registrar to comply with the Act and to be not contrary to provisions of the Act, of the regulations or of an award and not otherwise contrary to law. And of course no rule it makes may contravene the provisions of s.140(1). The validity of the new rule r.28(5) must be assessed in the light of the rules considered as a whole. In the totality of the situation there is to my mind much scope and encouragement for democratic action in relation to the organization and for member participation in its affairs. After all, the Federal Council has to be considered as the instrument of members for the active pursuit of the objects of the Association. It is sometimes necessary for the rule changes to be made swiftly. And, if democratic procedures additional to those existing in a case like this are to be imposed there are no precise standards that can be laid down. If the attempt is made by the Court it would rather seem to be putting into effect its own opinion as to what is desirable in the way of Union rules and Union management, which as O'Mara J. observed in Thornton v. Mackay (supra) at p.590 " . . . is not a function of the Court.". The whole problem is no doubt one of balancing concepts of an imprecise nature. But considered even by themselves, rr.23 and 26 are potent instruments for democratic action of the membership. They operate on the conduct of Federal Council in a mandatory fashion, and can be implemented by even a handful of members, and with great speed. Where, as here, there is so much scope for effective membership action it seems to me the words of the Full Court in Grove v. Federal Miscellaneous Workers' Union of Australia (1972) 21 F.L.R. 72 at p.81 are in point, namely, "There is a stage in the organization of voluntary associations at which authority must speak. At that point subject to the twin checks of honesty and vigilance the risks of improper use of a power of management have to be borne.".

In the light of the foregoing observations I reach the conclusion that r.28(5) is a valid rule.
The Effect of Section 171B - (Respondents' Contention No. (iv))

However, because of s.171B of the Act, the purported amendment, as an act performed in good faith by a collective body of the organization, has validity notwithstanding the failure to comply with r.28(2). Accordingly, the purported amendment of r.28 must, at this stage, be regarded as having been validly made. It follows therefore that so far as power to adopt rr.13(6) and 35(10) on 10 August 1978 was concerned, the Federal Council was fully equipped to adopt those rules. But s.171B(6) is in the following terms:-
"(6) Nothing in this section validates the expulsion or suspension of, or the imposition of a fine or any other penalty upon, a member of an organization which would not have been valid if this section had not been enacted."

It is clear that the dismissal from office and expulsion which was suffered by the relevant five appellants constituted penalties within the meaning of this provision.

It is just as clear that such penalties would not have been valid had r.28 not been amended, as it was, in September 1977 because, but for that amendment, rr.13(6) and 35(10) could not have been made by Federal Council without the procedure of r.28(2) to (4) having been followed.

It was argued by Mr. Gray that s.171B(6) was only effective to protect persons upon whom penalties have been imposed where the invalid act which is to be validated by the section was an act or operation in respect of the imposition of the penalties. Here, he argued, the act was too remote from the imposition of the penalties. He pointed out that it was separated from the imposition of the penalties by the act of adoption by the Federal Council of rr.13(6) and 35(10) in August 1978. Truly there was such a separation, but the words of s.171B(6) are so unambiguous that the submission as to the effect of the remoteness relied upon cannot be accepted. Thus s.171B can not assist the respondents in respect of the imposition of the penalties imposed in proceedings under rr.13(6) and 35(10).
Imbalance (Branch Representation on Federal Council) - (Respondents' Contention No. (v))

The appellants' contention in support of contention numbered 1(b) above depends upon there being proof that there was so great an imbalance in representation on Federal Council of the seven branches of the organization that, contrary to s.140(1)(a), r.21 which provides for Branch representation on Federal Council, failed to provide for the control of Federal Council by the members as required by regulation 115(1)(a)(v) and, further that, contrary to s.140(1)(c) that rule imposed upon members conditions which having regard to the objects of the Act and the purposes of registration of organizations under the Act were oppressive, unreasonable or unjust.

The evidence upon this matter is almost exclusively contained in an affidavit of the appellant Bignell. It is in the following terms:-

"19. During the period of my association with the Union, the size of the different branches of the Union has not significantly fluctuated. During most of this time, the different branches of the Union have contained the following approximate percentages of Union membership:-
Melbourne-Geelong 35% Queensland 12% South Australia 9% Western Australia 5% Tasmania 1% Sydney 33% Newcastle 5% 20. The last year for which I have precise figures as to the percentage membership of the Union in the different branches is the year ended 30th June, 1975. During that year, each Branch had the following percentages of the Union:-
Melbourne-Geelong 34.36% Queensland 12.24% South Australia 9.28% Western Australia 5.34% Tasmania 1.02% Sydney 33.00% Newcastle 4.76%"
If this evidence be accepted the situation disclosed clearly reveals a degree of imbalance requiring consideration. But it was not accepted by the learned trial judge. His Honour heard oral evidence of this appellant over eight days. He concluded, for reasons expressed, that he should not accept his evidence. He said "I am not prepared to accept any evidence that Mr. Bignell gave which is not corroborated by independent documentary evidence." If this conclusion may properly extend to the contents of the affidavit then there is no evidence of the state of Branch representation in the Federal Council and thus no evidence of imbalance.

It is contended for the appellants, however, that in the particular circumstances of this case the contents of the affidavit should, as a matter of law, be treated as reliable evidence despite the general lack of credibility of the witness. The particular circumstances referred to include, the omission from the cross examination of Bignell of any question going to the accuracy of the contents of paras. 19 and 20 of the affidavit, the inherently reasonable and credible nature of the particular facts deposed to, the ready availability of confirmation or contradiction of those facts by reference to available documents, the knowledge of the organization of the accuracy or otherwise of the matter stated and the capacity of the organization to contradict the statements if in fact they were inaccurate. Of course the material facts were necessarily within the knowledge of or available to the Secretary of the organization, and although the Secretary gave evidence on various matters he was asked no questions on the subject. It was submitted that it is to be seen from the manner in which the case was contested that the testimony in paras. 19 and 20 of the affidavit was just not a contested factual issue in the case.

The principle invoked was that stated by Lord Herschell in Browne v. Dunn (1893) 6 R 67 at pp. 70 and 71 as follows:-
"Now my Lords I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some question put in cross examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then when it is impossible for him to explain, as perhaps he might have been able to do, if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him and as it seems to me that is not only a rule of professional practice in the conduct of a case but is essential to fair play and fair dealing with witnesses. . . .
All I am saying is that it will not do to impeach the credit of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that the story is not accepted.
It seems to me therefore that it must certainly be taken that these witnesses . . . were telling the truth when they said 'We did bring before Mr. Dunn the fact that . . ."
Reference was made also to the discussion of this principle in Hardy v. Gillette (1976) V.R. 392 Read v. Nerey Nominees (1979) V.R. 47 and Bulstrode v. Tumble (1970) V.R. 840. In the last mentioned case Newton J. pointed out that the principle has two aspects, first as a rule of practice designed to achieve fairness to witnesses and a fair trial and secondly as a rule relating to the weight and cogency of evidence. It is particularly this second aspect which is currently of importance. Concerning it the learned Judge said,
"the rule says no more than that if a witness is not cross examined upon a particular matter upon which he is given evidence, then that circumstance will often be very good reason for accepting the witnesses evidence upon that matter."
Whether it is a sufficient reason in any particular case must depend upon the circumstances. In Precision Plastics v. Demir 132 C.L.R. 362 a personal injury case in which a jury was said to have seriously under estimated damages, the view was taken that the jury must have failed to believe the plaintiff, when, in answer to the question "How long do you intend to continue working?" she replied "I like to work very much. Until the age of fifty five years old. Of course until the last day until I died I like to work as far as work is concerned." Gibbs J., as he then was, with whom Stephen J. agreed said.
"If it had been intended to suggest that she was not speaking the truth she should have been cross-examined on this matter so that she might have an opportunity of explanation (cf Browne v. Dunn (supra)), but she was not cross-examined on her answer. The respondent's evidence . . . . was not inherently incredible. She had in fact been engaged in employment during the time she had been in Australia before the accident, and had only given up employment when it was necessary for her to care for her child. In these circumstances, in my opinion, the jury acting reasonbly were bound to accept her evidence . . . that she had the present intention of working until she reached fifty five."
It is apparent therefore that according to circumstances it may become the duty of the tribunal of fact to accept evidence, not inherently incredible, where the witness giving it has not been cross-examined thereon. The circumstances in this case are those outlined above. It is particularly important that the witness spoke of the 1975 Branch membership figures which he quoted as being those "for the last year for which I have precise figures.". This was a statement of such strength on a matter so within the respondent's knowledge that it almost demanded questioning if it was not accepted as being true. The statement of the degree of fluctuation of branch membership invaded the area of the Secretary's special knowledge and was calculated to evoke denial if not true. No real explanation of the omission to cross examine or contradict this evidence was submitted. Apart from all other considerations the evidence was a critical and immediate threat to the constitutionality of the Federal Council and could hardly not have been recognised as such. In view of the ease with which the evidence, if untrue could have been contradicted it is reasonable to think that the respondents preferred it in the form in which it was to that in which might emerge if the matter were pursued. In the result, according to the principle in Browne v. Dunn (supra), the evidence must be accepted.

In that case a serious imbalance in Branch representation at all material times is established. It is provided by r.21 as follows:-
(a) Members in each of the States of Queensland, Tasmania South Australia and Western Australia shall elect one Federal Vice-President and one Federal Councillor.
(b) Members attached to each of the Melbourne and Geelong Branches in the State of Victoria shall at a conjoint election pursuant to Rule 48A elect one Federal Vice-President and two Federal Councillors and
(c) (i) members of the Sydney Branch in the State of New South Wales shall elect one Federal Vice-President and one Federal Councillor (for the purpose of this Rule the Australian Capital Territory shall be considered part of the Sydney Branch), and
(ii) members of the Newcastle Branch in the State of New South Wales (as defined in Rule 47) shall elect one Federal Vice-President."
Disproportionate Branch Representation (Significance) - (Respondents' Contention Nos. (vi) and (vii))

As to this disproportion of Branch representation the learned trial Judge found that it was, to use the phrase adopted in McLeish v. Kane & Ors (1978) 22 A.L.R. 547 "within the spectrum" of disproportion which is acceptable. In other words he found that that disproportion established by r.21, was not of such degree that it could be said that the rule imposed upon members conditions which, having regard to the objects of the Act and the purposes of registration, are oppressive, unreasonable or unjust. This was essentially a finding of fact and therefore should not be set aside save where it is manifestly clear that it is erroneous. For reasons following it was, in my opinion, correct.

According to Branch membership alignment 27.88% of the members may have eight votes and the remaining 72.12% six votes if South Australia, Western Australia, Tasmania and Queensland voted together.

Putting the matter another way, it takes 35 times as many members in the Melbourne-Geelong Branch and 33 times as many members of the Sydney Branch to elect one member to Federal Council as it does for Tasmanian members to elect one member. It takes six times as many members of the Sydney branch to elect one Council member as it does for Western Australian members to do so. It is clear that majorities on Council may represent relatively small proportions of the total membership

To protect smaller Branches from domination by larger branches disproportionate representation to some degree is acceptable. In this case the question is whether having regard to all the circumstances it has been shown, for the purpose of these inter partes proceedings, according to the civil onus, that r.21 establishing the Federal Council imposes upon the membership conditions that are oppressive, unreasonable and unjust. Relevant for this purpose are the provisions in rr.23 and 26. Rule 23 is in the following terms:- "23. - SPECIAL MEETINGS OF FEDERAL COUNCIL AND FEDERAL EXECUTIVE
1. Upon a request of a majority of Branches (whose member-ship is a majority of the members in a particular State) in each of two or more States voting on the subject at special meetings of the Branches summoned for the purpose, the General Secretary shall call a Special Meeting of the Federal Council or Federal Executive to review any previous decision and/or to receive any recommendations in respect thereof, provided that in a State with only one or two Branches then for the purpose of this Rule one of those two Branches shall be regarded as a majority of Branches in such State.
2. Such request for a Special Meeting shall be in writing and shall specify fully the object of the meeting and contain a full report of the minutes of the Special Meetings of the Branches including details of voting.
3. The Federal Executive may at any time call a Special Meeting to consider matters of urgency.
4. Notwhithstanding anything contained in these Rules, the Federal Executive shall, when it deems it advisable to do so, have power to submit any matter to a referendum of the members of the Federal Council in lieu of calling a Special Meeting."
Rule 26 is in the following terms:-
". . . in any case any decision of the Federal Council and/or Federal Executive is disagreed with by a majority of the members of any two Branches in any two States, present at a meeting of the respective branches specially called for the purpose of considering whether that decision should be disagreed with and submitted to a referendum of the members of the Union, such matter shall thereupon be submitted to a referendum of the members of the Union. The referendum shall so far as practicable be conducted in the same manner as Branch Elections under Rule 48. The decision of the members of the Union at such referendum shall supersede the decision of Federal Council and/or Federal Executive."

The procedure provided in r.23 does not deprive the Federal Council and the Federal Executive of their constitutional powers as decision makers but it cannot be regarded as unimportant in the matter of the ascertainment and expression of the will of the membership. Reconsideration under Branch pressure would ten towards achieving results reflecting membership views. The procedure could readily be set in motion. It would certainly be of significance should the smaller branches combine against the larger. That significance is enhanced by the referendum provisions of r.26. The referendum provisions would always be in reserve. Having regard to the quorum provisions a referendum may be achieved, in theory at least, by eight members in each of two branches.

The inequalities in Branch representation on Federal Council would appear to operate mostly to the disadvantage of the large branches. But those branches acting in concert are well able to protect themselves through rr.23 and 26. But they may not act in concert. If they are in conflict then the issues will be decided by the over-represented smaller branches. But this would be the case, also, if the voting power of Melbourne and Sydney were raised, for instance, to six votes instead of two. Because of the existence of two large branches it is inevitable that if they are in conflict the smaller branches must hold the deciding vote.

These observations evoke considerations of the remarks of O'Mara J. in Thornton v. Mackay (1945) 56 C.A.R. 561 at 590:-
"Whatever may be the power of a Court in relation to union rules when it has cognizance of and is settling an industrial dispute its powers under s.58D are definitley limited. So far as that section is concerned I do not conceive it to be the function of the Court to put into effect its own opinions as to what is desirable in the way of union rules and union management. The section leaves the members of an organization free to adopt such rules as they see fit subject to those rules complying with the prescribed conditions and not being disallowable under the section. As to a scheme of government the members are free to choose, for example, either a federal system or a unitary system, they are at liberty to function with or without branches and subject to the prescribed conditions they may divide power amongst the organizations and the branches as they consider proper."
and the observations of the Commonwealth Industrial Court in Crealy v. Commonwealth Bank Officers' Association (1957) 1 F.L.R. 153 at 158, and Luckman v. Australian Postal Telecommunications Union (1978) 28 A.L.R. 393. In Crealy's Case the Court said:-
"This, like many organizations in Australia is one in which there are divisions in each of the States with limited powers exercisable within the State and central controlling bodies comprised of delegates elected by the members of those divisions. In the creation and maintenance of such a body it seems to us not unreasonable that its members should seek to ensure by constitutional provisions that the numerically smaller divisions should have an effective voice in its Federal conference and in its Federal committee of management. In this particular case if New South Wales had a majority of the members of the association as it is conceded it may at times in the future have, it could, if all voting in the Federal conference was to be strictly limited to membership strength, elect all the office bearers form that division and thus control the policy and activities of the whole association. It may well be that employees of the bank, particularly those living in other States would refuse to join or remain in a body so controlled in which their own influence could be very remote, and that in association of employees of a bank upon a Federal basis would on such terms be impossible.
The extent to which weight should be attached to these considerations is a matter properly left for the determination of members of the association in the rules they adopt subject only to the qualification that the rules do not offend against the provisions ofthe Act or Regulations. In Luckman's Case J.B. Sweeney J. considered it critical that the smaller branches had the numbers on Federal Conference and Federal Executive to thwart the will of the two largest branches. But it is clear that he was materially influenced by the fact that as in Mackenzie v. Administrative and Clerical Officers' Association, Commonwealth Public Service (1962) 5. F.L.R. 342 the two largest branches in combination, representing a majority of the membership, were unable themselves to require a plebiscite. It was put by Mr. Clarke that the availability of plebiscite provisions although relevant to the requirement that the rules provide for control of the governing bodies of an organisation, is not relevant to the question whether a rule specifying the construction of any such body imposes on members conditions which are oppressive, unreasonable or unjust. I am unable to take this view. Any rule under attack must be considered in the context of the rules as a whole.

Where there is a situation like that existing in this organization, comprised as it is, of two large branches with substantially equal memberships and six small branches, there seems to me to be considerable scope for the application of two factors, namely, that subject to the requirements of the Act, it is ultimately for the members to decide for themselves the structure of their governing bodies, and that a certain amount of over representation of the smaller branches is acceptable. Also in such a case, history may be a guide as to whether there is evidence that as a matter of practice the apparent over representation of small branches has created dissatisfaction or led to the frustration of the will of any branch or group of branches. This organization has existed since 1911. There is no evidence that any branches have resorted to r.23 or r.26. In these proceedings the organization speaking presumably for all save the Sydney Branch has no complaint to make as to the constitution of the Federal Council or Federal Executive. The complaint from the Sydney Branch is from members of long standing who give no evidence of earlier dissatisfaction with the constitution of Federal Council or Federal Executive, and do so now, only for the ulterior objective of avoiding disciplinary action for conduct the general nature of which is described hereafter and which drew the strongest censure from the learned trial Judge.

In Clarke v. Maynes (1977) Current Review 12, and Sherriff v. Townsend (1980) 48 F.L.R. 20 where rules were considered to offend because of disparities in Branch representation it was a feature that the operation of the rules was likely to lead to domination or at least excessive influence of paid officials. The same feature was present although less dominating with respect to the Federal Executive of the Australian Postal and Telecommunications Union which was the subject of the decision of J.B. Sweeney J. in Luckman's Case (supra). There is no such feature here. Subject to such considerations as are referred to by O'Mara J., the ideal is one vote one value. But in Federal situations the ideal is not demanded. For reasons of State interests that ideal is not implemented in the Australian constitutional provisions concerning the Senate. Much has to depend on the nature of the organization.

(5F) An organization in respect of which an application is made under this section shall be given an opportunity of being heard by the Court.
(5G) Where an order under this section declares that the whole or a part of a rule contravenes sub-section (1), the rule or that part of the rule, as the case may be, shall be deemed to be void from the date of the order."
Sub-section (5B) referred to in sub-section (5E) provides for an application to the Court by the Bureau and is not relevant for present purposes. Sub-sections (7) and (8) remain as they were when Maynes' case was decided.

The present form of the legislation is not in substance different from what it was when Maynes' case was decided. The view I have expressed as to the continuing force of the majority opinions in Shearer's case consequently applies in relation to the present legislation as it did to the legislation in the form in which it was at the time of Maynes' case.

The consequence of my opinion for the present case is that, if the rule, as amended, either itself contravenes s.140(1)(c), or, by reason of its inclusion amongst the rules of the organisation, it brings about a situation where the rules contravene s.140 in a specified respect, namely by failing to afford the general body of membership an adequate opportunity to take part in decisions to amend or add to its rules, the amendment is ineffective as between these parties. For reasons earlier given I am of opinion that the rule does contravene s.140(1)(c) or brings about a situation in which the rules as a whole do so in the respect I have specified. It follows that the rule as amended is ineffective, so far as the parties to these proceedings are concerned. As regards their rights and obligations inter se, the purported amendment did not operate to confer upon the Council power of its own motion to amend the rules of the organisation.

Such a view obviates the need to decide whether the case falls within the first or the second limb of s.140(5D). In fairness to counsel's submission he did not set much store upon his alternative argument that there was no invalidity if the case were within the first limb of the sub-section rather than the second. It seemed to me that he thought that the strength of the submission lay in the fact that there was manifested an intention that, where the contravention was a contravention of the sub-section in a specified respect by the rules as a whole, there was never to be invalidity. In such a case the procedure provided for in sub-sections (7) and (8) would be followed through and the rules changed to conform with the section. In counsel's submission the Court ought not to find invalidity, even inter partes, in the light of such a clear indication of legislative intention. I appreciate the force that such considerations have, but, for myself, I do not perceive any relevant distinction between the two situations. That is because, although, in the event of a declaration pursuant to the first limb, sub-section (5G) will operate to invalidate the rule (in whole or in part), it will not do so ab initio. The sub-section operates only from the date of the order. Here there is no application, let alone an order, under s.140. The application is brought pursuant to s.141. Unless one adopts, as I consider should be done, the approach of the majority in Shearer's case, the rule as amended would retain validity notwithstanding that it contravened s.140 (1)(c).

It follows that I would reject both the principal and alternative submissions relied upon by counsel for the respondents. Where does that conclusion lead?

The application is made pursuant to s.141. By it the appellants seek an order that directions be given for the performance or observance of the rules of the organisation by persons who are under obligations to perform or observe those rules. The rules must be those rules which, at the relevant time - the date of the purported dismissals and expulsions - were valid and effective as between the appellants and the respondents including the organisation. The starting point for the respondents' contention that they acted lawfully must be that there were in force rules which provided that the executive was empowered to hear and determine charges against officials and members, charges which could lead to their dismissal and expulsion. Such power, if it exists, only exists as the result of further amendments to the rules passed by the council in reliance upon the power to amend purportedly conferred by the amended Rule 28.5. If that rule is, as between these parties, ineffective because it or the entirety of the rules is in contravention of s.140(1)(c), the later rules are also ineffective. The rules which the members of the executive are bound to apply are rules which are in accordance with law. The order, if made, will be that they perform and observe rules lawfully in force - not rules which ought not, as a matter of law, ever to have been made.

It follows that in my opinion the appellants are right in their contention that the executive had no power to hear and determine the charges or to dismiss or expel the appellants other than Mr. Cook. Unless the respondents are entitled to succeed on discretionary grounds, the appellants must succeed.
Has the Court a Discretion to Refuse Relief?

The first question which must be answered is whether the Court has a discretion to refuse relief if the appellants have brought themselves within the terms of s.141. It was the appellants' submission that we should apply to its provisions principles which have been enunciated in numerous cases of which perhaps Julius v. Bishop of Oxford (1880) L.R. 5 A.C. 214 and Ward v. Williams (1955) 92 C.L.R. 496 are the best known - see particularly pp.505-506 of the judgment of the Court in the latter case. Fullagar J. in Shearer's case (supra) considered that those principles should be applied in relation to an application under s.140 of the Act (103 C.L.R. at p.378). No other judge in Shearer's case expressed a view on that matter. Windeyer J. expressly left the question open (p.389).

On the other hand a different view was taken of s.141. This first occurred in The King v. Commonwealth Court of Conciliation and Arbitration; ex parte Barrett (1945) 70 C.L.R. 141, where Dixon J. (as he was) referred to the power conferred by s.58E of the Act (s.58E, later renumbered s.81 (Act No.10 of 1947) and later still s.141 (Act No.44 of 1956). In Barrett's case Dixon J. went on to say categorically that the power conferred by the section was discretionary (p.169). His view in that regard was confirmed by the Full High Court in The Queen v. Spicer; ex parte Foster (1958) 100 C.L.R. 163. The section had by then become s.141 and the jurisdiction was conferred on the Commonwealth Industrial Court rather than the Commonwealth Court of Conmciliation and Arbitration as had been the case when Barrett's case had been decided. The Court said (p.168):
". . . the Commonwealth Industrial Court is not bound under s.141 to exercise its jurisdiction. It is a jurisdiction which is conferred in permissive terms and the Court has a discretion. In a case which it thinks unsuitable for the operation os s.141 it may hold its hand so that an application may be made under Part IX".

Part IX of the Act deals with disputed elections in organisations and confers power on the Court (s.165) to inquire into and determine the question of whether an irregularity has occurred in or in connection with an election. That was the particular matter with which the Court was concerned in Foster's case. I do not take what the Court said as an indication that it thought that the Commonwealth Industrial Court had a discretion to refuse relief only in cases where it thought it more appropriate for an application to be made under Part IX of the Act. Section 141(8) conferring such a discretion in express terms was not then in force. It should be noted that Fullagar J. was a member of the court which decided Foster's case.

My conclusions so far would tend to establish that the Court has a discretion to grant or refuse relief under s.141. But in the sumbission of counsel for the respondents that view is erroneous because of amendments which have been made to s.141 since Foster's case was decided. In order to deal with the submissions it is necessary to compare the section as it was at that time with the section in its present form and also to compare both forms of the section with the form of s.140 which has not undergone any material change since Fullagar J. said what he did in Shearer's case. It is also necessary to have regard to s.144.

The older form of s.141 (previously s.58E and then s.81) was relevantly as follows:
"(1) The Court may, upon complaint by any member of an organization and after giving any person against whom an order is sought an opportunity of being heard, make an order giving directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules."

The relevant sub-sections of the present s.141 are sub-sections (1), (1G) and (1H). the latter sub-section refers to sub-section (1E). It provides for an application to the Court for an order under the section by the Industrial Relations Bureau. The sub-sections to which I have referred are as follows:
"(1) A member of an organization may apply to the Court for an order under this section in respect of the organization."
"(1G) An order under this section may give directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules."
"(1H) The Court has jurisdiction to hear and determine an application under sub-section (1) or (1E) but, before making an order under this section, the Court shall give any person against whom the order is sought an opportunity of being heard."

These sub-sections may be compared with sub-sections (2), (5D), (5E) and (5F) of s.140. Those sub-sections have been earlier set out (p.56).

The form of s.140, subject ot amendments to accommodate the powers and functions of the Industrial Relations Bureau, has not changed since fullagar J., in Shearer's case, which was decided in 1960, said that the Court's power was not discretionary. However, the form of s.141 has undergone a material change since Foster's case and Barrett's case were decided. Importantly, it has been amended to correspond in form and structure with s.140. It is this consideration which counsel for the appellants claimed to be decisive. He submitted that Barrett's case and Foster's case no longer applied because of the differenf form of the section and, that being so, this Court was bound to follow what was said by Fullagar J. in Shearer's case about a similarly structured secion in the same Part of the Act.

I would reject this submission. Notwithstanding the change in the form of the section, I do not think that its provisions, as to matters of substance, are materially different from those of the former s.141 and its predecessors. I would not therefore lightly depart from the views expressed in Barrett's case and Foster's case. Furthermore, I think that there is a reason for the different views which have been taken concerning the two sections, different views which were taken by Fullagar J. himself, he being a party to the judgment in Foster's case. That difference is, in my opinion, based on the difference between the purposes and objects of the two sections, really their purview. Section 140 is concerned to provide for certain standards in the rules of organisations. It empowers a member of an organisation, and now also the Industrial Relations Bureau, to apply for an order which may declare either that the whole or a part of a rule contravenes sub-section (1) or that the rules of an organisation contravene it in a specified respect. I have earlier referred to the consequences of the making of one or other of these declarations. Importantly for present purposes neither will result in voidness ab initio. If the contravention is of the second category no voidness at all results; if it is of the former category voidness will only result from the date of the Court's order. When Fullagar J. said what he did in Shearer's case there was no second limb of the sub-section corresponding with sub-section (5D) and no provison corresponding with sub-sections (7) and (8). But the fact remained that if an order were made under s.140 there could be no voidness prior to the date of the Court's order.

On the other hand in proceedings other than an application brought under s.140 itself, a question of invalidity ab initio can arise. That was the view of the majority of the judges in Shearer's case. I do not repeat my earlier discussion of what was there said. The judgment if Foster's case shows that in one respect it was desirable and necessary for the Court to be able to stay its hand under s.141. That was if an application were pending or were to be made under Part IX of the Act. That, as I have said, ought not to be taken as an indication by the Court in Foster's case that that was the only circumstance in which the Court had a discretion to refuse relief.

The consequence of an order under s.141 is to impose an obligation upon the persons to whom the order is directed to perform and observe the rules of the organisation. Disobedience of the order will render the person in breach liable for the penalty for which the section provides (sub-section (4)). There may be many reasons why the interests of justice require that no order be made. In my opinion the legislature, merely because it has changed the form of the section, ought not be taken to have dislcosed an intention that the court was no longer to have the discretion found by the High Court to exist in the earlier cases.

Because of asubmission made by counsel for the appellants, I should mention s.144. It deals with the entitlement of persons to membership or organisations. Sub-section (5) provides that where a question of dispute arises as to the entitlement under the section of a person to be admitted as, or to remain a member, that persons and certain other classes of person or persons may apply to the Court for adeclaration as to the entitlement of the first mentioned person under the section. Sub-sections (5A) and (6) of s.144 are as follows:
"(5A) Subject to sub-section (7), the Court has jurisdiction to hear and determine an application under the last preceding sub-section and may, notwithstanding anything contained in the rules of the sorganization concerned, make such order to give effect to its determination as it thinks fit.
(6) the orders which the Court may make under the last preceding sub-section include an order requiring the organization concerned to treat a person to whom sub-section (1) applies as being a member of the organization and, upon the making of such an order, or as otherwise specified in the order, the person specified in the order becomes, by force of this Act, a member of the organization."

In Owens v. Australian Building Construction Employees and Builders Labourers Federation (1978) 19 A.L.R. 569, this Court held that the provisions of s.144 did not confer upon the Court a discretion to grant or refuse relief if the facts empowering the Court to act were made out (pp.577-578). I would distinguish that decision from the present case because of the very different subject matter of s.144.

For the reasons I have given I am of opinion that this Court when dealing with an application under s.141 of the Act has a discretion to give or refuse relief.

A further submission was made which, if accepted, would have the practical effect in a case of this kind of denying to the Court any discretion to refuse relief, notwithstanding that it might have such a discretion in other classes of case. It was submitted that the respondents other than Robert Arthur Cook were lawfully both officers and members of the organisation. The only way in which they might be dismissed from office or expelled from membership was by lawful action taken pursuant to valid rules of the organisation. Reliance was placed upon the decision of Megarry J. (as he was) in John v. Rees (1970) Ch.345. His Lordship said (p.397):
"In the present case, there has not in terms been anyprocess of expulsion, Instead, there has been the process which, on Mr. Sparrow's argument, resulted in what for brevity may be described as an ipso facto cessation of membership which, he contended, 'got round all problems relating to expulsion.' considered from the point of view of the members, however, the practical result is indistinguishable from expulsion. Before, they weremembers; after, they had been depreived of their membership against their will. The precise legal description of the process by which this occurred, whether by destruction of their own membership, or acts constituting resignation, or repudiation of membership, may well be a matter of indifference to them; they have been unwillingly evicted.
I cannot believe that the principles of natural justice can be ousted by the simple process of describing expulsion by another name, or resting it upon an alternative theoretical basis. Membership of a club or association is doubtless founded upon a basis of contract; but in many cases it is not merely a contract. Membership often gives the member valuable proprietary and social rights, and these, as well as the contract, would be terminated by expulsion. There is thus involved in expulsion not merely the termination of the contract but also the forfeiture of these other rights; and however ready the law may be to recognise the discharge of acontrat by repudiation, it is far less ready to accept that there has been a forfeiture of these other rights, whether the process is described as 'ipso facto determination' or otherwise."

To the same effect is a dictum of Isaacs J. in Meyers v. Casey (1913) 17 C.L.R. 90. Isaacs J. said (p124):
". . . . the issue of whether the appellant was or was not in fact guilty of misconduct is in no way raised for the Court's determination, whereas the misconduct in respect of which the maxim ('clean hands') is always applied is equally with all the other matters an issue within the Court's sphere of determination. If the racing tribunals had, or are to be taken to have had, the requisite authority, and to have acted within their powers, the finding of guilt must stand; if not, he has never been tried, and must be considered innocent until he is condemned by the proper tribunal - which was not the Supreme Court, and is not this Court. To the question of his actual guilt or innocence, neither Court can have anything to say, and, in my opinion, whatever has been said in that respect by the primary tribunal ought to be considered as not affecting the appellant, because entirely extra-judicail."

The judgments in the two cases I have cited were given by courts of general jurisdiction. The statements of the two judges were made in the course of giving reasons why particular equitable remedies, the enforcement of which was sought by plaintiffs, should be granted. The discretion which I hav e found here exists is a statutory one and would compel the organisation and a number of its officials to recognise as officials and members of the organisation persons whose object in being restored to office and membership is to continue to undermine and subvert a branch of the organisation. Of that matter I shall say a little more shortly. All it is necessary to say at the moment is that, whilst in many cases the making out of a case such as has been made here will warrant no other course but the grant of relief, there will be cases where, notwithstanding the force of the considerations mentioned both by Megarry J. and Isaacs J. relief should nevertheless be refused.
How should the Court's discretion be exercised?

The matters relied upon by counsel for the respondents in support of his argument that this Court in the exercise of its discretion should not grant relief were based upon the conduct of the appellants other than Robert Arthur Cook. The conduct relied upon is that earlier described under the heading "Background to the Dispute", see pp.9-14 hereof. Particular reliance was placed upon the findings made by his Honour in that part of his judgment which I have quoted (pp.13-14). The appellants, as I have earlier mentioned, made no challenge to those findings.

In my opinion those findings establish that the appellants, other than Robert Arthur Cook, have embarked upon aconcerted course of conduct designed to destroy the viability of the Newcastle branch of the organisation. Their conduct in opersuading members to resign from the Newcastle branch and join the New South Wales Union, which conduct formed the basis of the charges brought by Mr. Masterson aginst them, is but one aspect of a course of action intended to build up the strength of the New South Wales Union at the expense of the Newcastle branch of the organisation itself. I am of opinion that the inference is open that the present application, including this apeal, is being prosecuted in order that the appellants may be restored to their offices so that they may continue to carry on the disloyal and reprehensible conduct which has been found against them. Clearly that inference should be drawn. There can be no other reason why the application was brought. Success in the application would put the appellants ina position where, if the organisation did not recognise them both as officers and members, it and a number of its other officers would be exposed to the penalty for which s.141 provides.

The office bearers of the Sydney branch, particularly the secretary thereof, like other union officials, are under a fiduciary obligation to the organisation in which they bear office and to the members of that organisation. In more commonly understood language they are in a position of trust. In this case his Honour's unchallenged findings demonstrate that the appellants, other than Robert Arthur Cook, have betrayed that trust by building up another organisation at the expense of that to which they owed obligations of loyalty and good faith.

If they are of opinion that plumbers and gasfitters in the State of New South Wales would be better represented by a State union under State awards, that is their right. There is nothing to prevent them organising a State union and acting in opposition to the federal organisation. But what they may not lawfully do is to use their position as office bearers in the federal organisation, not for the purpose of furthering its objectives and interests, but for the purpose of subversively undermining it in order to advantage the other organisation to which they loyalty is owed.

It is in these circumstances that counsel for the respondents submits the Court will not in the exercise of its discretion aid the appellants in the unlawful course of conduct upon which they have embarked.

with this conduct in mind I come directly to the question of how the Court's discretion should be exercised. It must be remembered that there are two separate and distinct matters which are to be the subject of decision. The appellants seek orders both as regards their position as officers of the organisation and as members of it. It may be that the Court ought exercise its discretion against granting relief which would compel the organisation to continue to treat them as officers but would grant it in respect of the application to compel it to treat them as members.

At the outset it should be said that there is no express limitation imposed upon the width of the discretion by the terms of the section itself. Nevertheless, I do not think that the Court ought refuse relief to an applicant who has brought himself within its purview unless there be some good and cogent reason associated with the granting of that relief why the Court should refuse to act.

During the argument reference was made to the circumstances in which courtsof equity refuse relief to plaintiffs who do not come to court with "clean hands". A convenient statement of the principles which then aply is to be found in the judgement of Isaacs J. in Meyers v. Casey (supra at pp.123-124). He there makes it clear that the alleged misconduct must have an immediate and necessary relation to the equity sued for. In his language the Court will not give relief if "protection for what he (the plaintiff) claims involves protection for his own wrong".

Meyers v. Casey was a case involving disqualification from a racing club and expulsion from membership therefrom. Its rather complicated facts need not be referred to except to say that whether the appellant had been guilty of the misconduct alleged against him was a matter to be determined by certain racing tribunals. It was not a matter for the court which was only concerned to see to it that the racing tribunals acted in accordance with law. It was those considerations that led Isaacs J. to say what he did in the passage I have quoted from his judgment on pp.72-73 hereof.

Having reflected on the matter, I have reached the conclusion that the circumstances in which equity will refuse a plaintiff relief because of absence of clean hands can have only an indirect bearing on the exercise of the court's discretion under s.141 of the Act. There are many reasons why, when construing and applying a provision such as s.141, one would not regard oneself as circumscribed by the equitable doctrine in question. The discretion, as I have said, is conferred in wide terms. there is no reason to suppose that the legislature intended the equitable principles to be picked up and to be themselves decisive of whether the discretion should be exercised or not. Particularly is that so, in my view, when the effect of making an order under the section will be to expose the persons against whom the order is made to the penalty for which the section provides.

As earlier said, the purpose and object of the appellants in maintaining these proceedings is to achieve a situation where they will be able the better to continue their subversive conduct. I have reached the clear conclusion that this Court ought not permit itself to be used by the appellants for that end. No matter that the appellants have not been charged and dealt with in accordance with the valid rules of the organisation, the Court ought not to give aid to persons who are deliberately set on a course of action designed to destroy a branch of an organisation registered under the Act. If an order were made the respondents, including the organisation itself, would be bound to allow that course to continue. If they did not, they would be liable for the penalty for which the section provides.

What I have so far said applies plainly in relation to so much of the application as has the effect of seeking orders which will compel the respondents to treat the appellants as officers of the organisation. It does not apply with such force to so much of the application as seeks an order having the effect of compelling the respondents to treat them as members. I have given serious consideration to the question of whether or not the appropriate course is to allow the appeal insofar as it concerns the membership of the appellants of the organisation. One of the things I have taken into account is that if the appellants sought work in the industry under a federal award, they would be unlikely to get it unless they were members. Thus their expulsion from membership might affect their livelihood. But there is no evidence that they are seeking work in the industry at the moment and if they do, they may resort to an application under s.144 of the Act earlier referred to. On reflection I consider the disloyal and subversive conduct of the appellants other than Robert Arthur Cook to be so serious that it reflects a clear intention not to be bound by the normal obligations which a member of an organisation, trade union or not, owes to the organisation and to his fellow members. In those circumstances I think relief should be refused both in respect of the claim for relief with regard to dismissal from office and expulsion from membership.

In reaching my conclusion I have taken into account the relief which this Court is able, in a proper case, to grant under s.141 of the Act. Relief pursuant to that section has already been granted by the learned trial judge. But if this appeal were to be allowed in relation to matter No. 19 of 1979 it may well be that a consequence would be the allowance also of the appeal in matter No. V 23 of 1979. The two applications involve so much the question of the validity of rules and consequent resolutions that relief which is available to the organisation and members of its executive under the section may be limited in the extreme. I express no final view. All I wish to say is that the fact that the organisation and members of its executive may apply for relief under s.141 does not persuade me that the Court's discretion should be exercised otherwise than as I have indicated.

Before I leave this case I wish to say something of the limited power which I consider this Court has to assist parties in a dispute of this kind. A court of general jurisdiction has much more flexibility in what it may do. If this were such a court it would, undoubtedly in a case such as this, be asked to restrain persons in the position of the appellants here from acting otherwise than in accordance with their duties and obligations as officers and members. If it felt minded to grant relief so as to ensure that such persons were afforded a hearing in accordance with the rules of the particular organisation to which they belonged, it would be likely that it would only grant that relief on terms that undertakings were given to the court that the officers would act in accordance with their duties and would restore money and property wrongfully taken from the organisation to it. Breaches of injunctions and undertakings of the kind I have mentioned would be punishable as contempts of court.

This case provides a clear indication of the need for the amendment of the legislation to confer on this Court wide powers to make orders in respect of officers and members of organisations who are recreant to their duties. We were told during argument that the appellants are still acting as if they are officers. Perhaps they will continue to do so even after this judgment has been delivered. Unless a court has clear injunctive power that is the sort of problem that can arise. That it should exist redounds to the disadvantage of the membership whose funds are expended on legal costs in what may turn out to be an inconclusive exercise. If the Court is invested with jurisdiction to deal adequately and completely with the entirety of a dispute the likelihood is that matters are brought to a head and disposed of much more expeditiously and thus more inexpensively than is the case under legislation such as here applied. That is the experience of the Supreme Courts in administering the Companies Acts of the various States.

It should be clear that there are difficulties about the jurisdiction of the Supreme Courts in relation to federal organisations; cf. Federated Clerks Union of Australia v. Hills (1981) 1 N.S.W.L.R. 631 and s.147 of the Act. And this Court not only has the limitations upon its jurisdiction and powers earlier referred to; those very limitations restrict its power to accept undertakings in proceedings for final relief; see Thomson Australian Holdings Pty. Limited v. Trade Practices Commission (1981) 37 A.L.R. 66. It may perhaps be the case that the Supreme Courts have some remaining jurisdiction to deal with internal disputes arising within organisations. I express no view. But if it be so, this Court may be able to exercise that jurisdiction when seized of an application under s.141 of the Act; see Philip Morris Incorporated v. Adam P. Brown Male Fashions Pty. Limited (1981) 33 A.L.R. 465. But such considerations raise complex and difficult problems which parties to litigation ought not to have to concern themselves about. The position should be clear beyond question.

It follows that it is highly important in my opinion that the legislation be changed to give this Court all jurisdiction necessary to deal with all aspects of disputes involving members and officials of organisations either amongst themselves or to which the organisations are parties. The legislation under which the organisations are registered is Commonwealth legislation and operates throughout Australia. The organisations are creatures of that legislation. There can be no question but that jurisdiction to give adequate relief should be vested in this Court.
Conclusion

In the way that I have approached the matter a number of submissions relied upon by the parties do not, in my opinion, fall for decision. I should mention some of these shortly. It was submitted on behalf of the respondents that the conduct of the appellants which I have decided ought lead to the refusal of relief upon discretionary grounds, should also lead to the same result either because it showed that the appellants had evinced a clear intention not to be bound by their contract of membership or because it meant that the appellants had resigned unilaterally both as officers and members of the organisation. In relation to the first submission it was said that the repudiation had been accepted by the organisation when its executive purported to dismiss the appellants from office and expel them from membership. Insofar as repudiation was not applicable in relation to the holding of office as distinct from membership, it was said that the appellants could not be officers if they were no longer members. The alternative submission shortly stated as "unilateral resignation by conduct" was put in order to overcome the need for the acceptance of the appellants' claimed repudiation of their contracts of membership.

I record the making of these submissions but, in the circumstances, express no view about them.

Other submissions made by the parties are dealt with in the judgment of Smithers J., whose judgment I have had the advantage of reading. The point of difference between us is in our differing views concerning the question of whether the amended Rule 28.5 contravened s.140(1)(c) of the Act. If, contrary to the view I have expressed in my judgment, I had concluded that the amended Rule 28.5 was valid, I would have reached an ultimate conclusion similar to that reached by Smithers J. In this connection I wish particularly to say that, in that event, I would have been in agreement with his conclusions concerning the matters dealt with in his judgment under the headings, "Imbalance", "Disproportionate Branch Representation", "Charges" and "Sanctions".

For the reasons I have given I am of opinion that the appeal in matter No. N 19 of 1979 should be dismissed. It may be that that conclusion should also lead me to the view that the appeal in matter No. V 23 of 1979 should also be dismissed. However, I would prefer not to express a final opinion at this stage. For reasons given at the outset of this judgment I would propose that after these reasons have been published no orders be made and that the matters be stood over for a short time to enable counsel to consider what we have said.

[1982] FCA 133

07 JULY 1982